An important first step is ensuring that all stakeholders are clear on the needs that are to be addressed, and why they matter. ‘Vulnerability’ is an increasingly used term but can have very different meanings for different professions, organisations and even individuals. In this context, vulnerability has a very specific meaning. Having a clear and shared understanding is an important foundation for the rest of the development or commissioning process.
The justice system should be fair for everyone.
The right to a fair trial is a fundamental human right and a critical element of a fair justice system. Ensuring a fair trial is not limited to what happens in a court room. Many cases never go to court. In cases that do, the stages that came before court can be just as important.
Unreliable evidence presents a significant risk to achieving a fair trial. Its use can result in innocent people being convicted (a miscarriage of justice). Such convictions may, or may not, be quashed on appeal.
Courts have wide powers to exclude evidence where they believe it would have an adverse impact on fairness. Courts can also direct a jury to be cautious about convicting a person the basis of certain evidence. Where unreliable evidence is identified, prosecutions may fail.
Both miscarriages of justice and failed prosecutions involve significant unnecessary expense and wasted time, inconvenience witnesses, distress victims and reduce public confidence in the system.
In order to reduce the risk that evidence is unreliable (and may therefore be excluded), the police are expected to collect evidence in certain ways.
The circumstances which render courts likely to exclude evidence are: -
- breaches of human rights; or
- breaches of the Police & Criminal Evidence Act 1984 and statutory Codes of Practice; or
- where the police act in bad faith (acting in good faith does not excuse breaches).
Vulnerability can be seen as the extent to which a person is susceptible to specific negative consequences in the context of personal and/or situational factors.
Within a policing context, the term ‘vulnerable’ is applied in many ways. Although this can be confusing, it is also inevitable since vulnerability is dynamic and contextual. Describing someone as a ‘vulnerable person’ is shorthand. In reality, people can’t be categorised as simply vulnerable or invulnerable. A young girl who has been trafficked, a teenager getting involved with a gang, or a middle aged professional suspected of a serious crime might all have factors that make them vulnerable to certain negative things. A person could be described as ‘vulnerable’ simply by virtue of being detained.
Therefore it is important to define clearly and specifically what is meant by ‘vulnerable suspects’ for the purposes of PACE so that resources are targeted correctly. The use of appropriate adults is associated with specific situational and personal factors, which render people vulnerable to one or more defined risks.
PACE defines which groups of people are considered to be at risk in the defined situations.
People who appear to be aged under 18 years (Children)
Police must treat any person who appears to be aged under 18 as a vulnerable suspect.
Across legislation and international conventions a number of different terms are used to describe people aged under 18 years:
- The UN Convention on the Rights of the Child uses the term child
- PACE uses both juveniles and person who has not attained the age of 18.
- The Children and Young Persons Act 1933 s.107 uses child (for 10-14 years old) and young person (for 14-17 years old)
People who may have a mental disorder or be otherwise mentally vulnerable (Vulnerable Adults)
Any person who the police suspect may have a mental disorder or be otherwise mentally vulnerable must be treated as vulnerable.
- Mental disorder is defined in law as ‘any disorder or disability of the mind’.
- Mental vulnerability applies to any person who the police suspect may not understand the significance of what is said, of questions or of their replies, because of their mental state or capacity.
If a police officer ‘has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion’, they are legally required to ask an AA to attend, and to have one present for most procedures (PACE Code C 1.4).
There is no requirement for a person to have a medical diagnosis or be engaged with support services. A person who has required an AA in the past may not need one in the present. A person who has no history of mental vulnerability may require an AA. Vulnerability may be permanent, long-standing or situational.
Examples of conditions include but are not limited to: -
- mental illness
- intellectual disability
- autistic spectrum conditions including Asperger’s syndrome
- attention deficit hyperactivity disorder
- acquired brain injury
- trauma / extreme stress
The decision is the legal responsibility of the police custody officer, or in the case of a voluntary interview the interviewer. Where there is any suspicion, they must contact an AA as soon as is practicable. They may seek input from various sources and professionals experience and qualifications in mental vulnerability (such as liaison and diversion staff). If they receive evidence that dispels their suspicion there is no longer a requirement for an AA. However, the decision cannot be delegated or passed to others.
It should be noted that the test for vulnerability under PACE is not the same as the tests for fitness to detain, fitness to interview, mental capacity (under the Mental Capacity Act 2005), or for care and support needs (Care Act 2014).
The Police and Criminal Evidence Act 1984 and its Codes of Practice (known collectively as PACE) define the relevant situational factors. A person must be:
- in police detention having been arrested in relation to a suspected offence; or
- being interviewed voluntarily by police under caution (at any location); or
- being interviewed under caution by any other authority with the power to interview under PACE 1984 (i.e. Local Authorities, DWP, Single Fraud Investigation Service, Health and Safety Executive, Office of Nuclear Regulation; Environment Agency)
This applies whether a person is detained for a criminal matter under PACE 1984 or a terrorism-related matter under The Terrorism Act 2000 (TACT).
The Crime and Disorder Act 1998 also specifies two further situations in which a child (a person under 18 years) requires an AA: -
- when a youth caution is applied; and
- when a youth conditional caution is applied.
The appropriate adult role, as defined in law, does not apply to support provided to : -
- vulnerable victims or witnesses;
- people detained by police under the Mental Health Act 1983 unless they are later arrested or otherwise questioned as a suspect in a criminal offence;
- unaccompanied asylum seekers subject to age assessments;
- people detained at ports and borders.
While the term appropriate adult may be used in relation to support required for these groups, such support is not within the scope of an appropriate adult as defined by PACE. Local areas are free to develop contracts that include both types of provision or use the same provider for both. However, it is important that the various roles are distinct, discrete and not confused. While many of the underlying skills will be shared across these services, the purpose, activities and training will be different.
Poor treatment and abuses of power
Poor treatment or abuses of power include but are not limited to: -
- not having someone informed that they have been detained and where they are
- abuse, bullying, threats, disrespectful treatment and neglect
- unlawful restraint
- an ineffective risk assessment by a qualified practitioner and lack of access to medical and mental health treatment
- lack of access to support, plus information and advice in an appropriate format on how to access it
- lack of reasonable adjustments for people with a disability 
- not being informed of the right to free legal advice
- not being made aware of the right to silence, or this right not being respected
- not being given timely access to free medical help
- unsuitable accommodation, dirty, cold or dark cells
- unreasonably limited access to toilet and washing facilities
- a failure to provide breaks in questioning to allow for food, drinks and rest periods
Ineffective participation in procedures
Participation may be ineffective because a person may: -
- have difficulty understanding and/or exercising their rights and entitlements
- have difficulty understanding the implications of the procedures and processes connected with the investigation and/or their detention
- not understand the significance of what they are told or questions asked or of their own replies
- be particularly prone in certain circumstances to:
- providing unreliable, misleading or self-incriminating information, without knowing or wishing to do so;
- accepting or acting on suggestions from others without consciously knowing or wishing to do so; or
- becoming confused and unclear about their position
- making short-term decisions without considering consequence
- be misunderstood by police and others (e.g. solicitors, healthcare professionals)
The above risks may increase significantly in the context of a long period of police detention. Longer periods of detention may be the result of serious criminal matters (up to a total 96 hours under PACE) or terrorism matters (up to a total of 14 days). However, almost all detentions last no longer than 24 hours and many are considerably shorter.
 See http://appropriateadult.org.uk/images/pdf/2015_B_legislation_review.pdf . Article 2 (Right to life) imposes an obligation to protect individuals in state detention whose life is at risk, including from suicide. This includes a duty to put in place appropriate systems designed to protect lives. According to the ECHR (2015)8 , in relation to police detention, this includes but is not limited to: -
 Equality Act 2010 s.28
 Article 6 (right to a fair trial) sets out a number of minimum rights. This includes being informed in a way a person understands and in detail, the nature of the accusation against them. Case law has held that Article 6 applies to suspects interrogated in police custody, with obvious implications for people with a mental vulnerability. http://appropriateadult.org.uk/images/pdf/2015_B_legislation_review.pdf